Wood v. State

• Decision Date: 28 November 1944
• Citation: 155 Fla. 256,19 So.2d 872
• Parties: WOOD v. STATE.
• Court: Florida Supreme Court

19 So.2d 872

155 Fla. 256

WOOD v. STATE.

Florida Supreme Court

November 28, 1944

Rehearing Denied Dec. 22, 1944.

Appeal from Criminal Court of Record, Dade County; Ben C. Willard judge.

James M Carson, Vincent C. Giblin, and George S. Okell, all of Miami for appellant.

J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Robert R. Taylor, Co. Sol., and Glenn C. Mincer, Asst. Co. Sol., both of Miami, for appellee.

CHAPMAN, Justice.

The appellant Hayes S. Wood, was informed against by the County Solicitor of Dade County, Florida, in seven counts. The first count charged a felony in that he embezzled the sum of $670.65, property of Dade County, when holding the office of Tax Collector of said County. Count 2 charged that Wood violated Section 839.03, Fla.Stats.1941, F.S.A., by failing to make prompt payments of public money, which is a misdemeanor. The third count charged Wood with embezzling the sum of $4,867.89, contrary to the provisions of Section 812.10, Fla.Stats.1941, F.S.A., which is a felony. Count 4 charged Wood with malpractice in office, contrary to the provisions of Section 839.11, Fla.Stats.1941, F.S.A. Counts 5, 6, and 7 charged misdemeanors and were nolle prosequi on motions of the County Solicitor.

The appellant upon arraignment entered a plea of not guilty as to counts 1, 2, 3 and 4 of the information. Motions of appellant to strike counts 2 and 4 were denied. The appellant was placed upon trial before a jury on counts 1, 2, 3 and 4 and, after the State rested its cause, the trial court granted a motion of the appellant for a directed verdict as to counts 2 and 4. The jury's verdict found the appellant not guilty as to count 3 but guilty under count 1. The trial court sentenced the appellant under count 1 of the information to the State Prison at hard labor for a period of six months. An appeal therefrom has been perfected here.

The State of Florida, under the provisions of subsection (c) of Rule 11 of this Court, by cross appeal seek here a review and reversal of the order of the trial court by which the jury was directed to find a verdict of not guilty in behalf of the appellant as to counts 2 and 4 of the information. Section 924.07, Fla.Stats.1941, F.S.A., regulates and provides the order or orders that can or may be reviewed here on appeal by the State of Florida in criminal cases. Counts 2 and 4 each charged misdemeanors and appeals therefrom are reviewed by the Circuit Court and not by the Supreme Court. Section 11 of Article 5 of the Florida Constitution; Best v. State, 91 Fla. 481, 107 So. 638; Byrd v. State, 146 Fla. 686, 1 So.2d 624.

Counsel for appellant pose for adjudication here the question, viz: Where a tax collector is required to deliver funds collected by him within thirty days to his successor and such failure or omission or refusal is prima facie evidence of embezzlement, is such tax collector guilty of embezzlement if such collector pays and accounts to his successor such funds so charged to be embezzled within thirty days of his taking leave of office and within thirty days of the successor's appointment and qualification to succeed him? While counsel for the State submit that an answer here to the following question will be decisive of this controversy: Was the appellant guilty of embezzlement?

The appellant, prior to the filing of the information, held the office of Tax Collector of Dade County, Florida. He obtained from the Governor of the State of Florida a leave of absence from the office of tax collector of Dade County and entered the United States Navy. The leave of absence, under the Governor's order, became effective August 15, 1942, but Mr. Wood left Miami on July 29, 1942, and left Mr. Arthur J. Gucker in charge of the office of Tax Collector. Mr. Gucker was by the Governor on August 20, 1942, appointed acting Tax Collector of Dade County, and received his commission about August 22, 1942. The giving of the bond by Mr. Gucker and a transfer of the deposits, making arrangements with the banks, and an actual transfer of the office from Mr. Wood to the Acting Tax Collector were concluded about August 27, 1942. It is a reasonably inference based on the testimony that Mr. Gucker became acting Tax Collector of Dade County on a date between August 22 and August 27, 1942.

Chapter 20718, Acts of 1941, Laws of Florida, F.S.A. § 115.08 et seq., authorized the Governor to grant the appellant Wood a leave of absence from the office of Tax Collector so that he could enter the military service of the nation. Section 1 of the Act provides, in part, 'subject to the provisions and conditions hereinafter set forth, be granted leave of absence from their respective offices and duties to perform active military service, the first thirty days of any leave of absence to be with full pay and the remainder without pay.' Thus Wood's salary continued for a period of thirty days after the effective date of the leave of absence, to-wit, August 15, 1942, and ended September 15, 1942.

Independently of the provisions of Chapter 20718, supra, Section 14 of Article 16 of the Florida Constitution provides: 'All State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.' If Mr. Gucker qualified as acting Tax Collector on a date between August 22nd and August 27th, 1942, then the office was held by Mr. Wood until the date of Mr. Gucker's qualification, although Mr. Wood at the time was at the Great Lakes Naval Station. Section 145.01, Fla.Stats.1941, F.S.A., fixes the salary of Tax Collector of Dade County at the sum of $7,500 per annum. Section 145.02, Fla.Stats.1941, F.S.A., authorizes the payment of salaries of clerks and assistants along with other necessary expenditures for the proper operation of the office.

Count 1 of the information charged that Wood, as Tax Collector of Dade County, on or about January 1, 1942, received the sum of $670.65, property of Dade County, and within two years prior to filing the information, the exact date being unknown, and did (a) convert the said moneys to his own use; (b) secrete the said moneys with intent to convert the same to his own use; (c) did withhold the said moneys with intent to convert the same to his own use, contrary to law, etc. The count is drawn under Section 812.10, Fla.Stats.1941, F.S.A., and pertinent portions thereof are viz:

'(b) Any money, property or effects of another, the duty of which officer requires him to receive said money, property or effects, shall in every such act be deemed guilty of an embezzlement of the money, property or effects so converted, secreted or withheld, and shall be punished by imprisonment in the state prison not exceeding twenty years, and by a fine equal to the value of the money, property or effect so converted, secreted or withheld.

'The failure, neglect, omission or refusal of any such officer to pay over or deliver to any official or person authorized or having the right by law to receive the same, for more than thirty days after the same has been collected or received by him, shall be prima, facie evidence of the conversion to one's own use, or the secreting with the intent to convert to one's own use, or the withholding with intent to convert to one's own use the said money, property or effects.'

This Court has construed Section 812.10, supra, from time to time. See Daugherty v. State, 143 Fla. 578, 197 So. 501; White v. State, 78 Fla. 52, 82 So. 602; Rast v. State, 79 Fla. 772, 84 So. 683; Black v. State, 77 Fla. 289, 81 So. 411; Crane v. State, 76 Fla. 236, 79 So. 806.

It is settled law that it is the province of the jury to determine the weight of the evidence, the credibility of the witnesses, and to decide...